Madhya Pradesh High Court
Aruna Patni vs The State Of Madhya Pradesh on 3 October, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 3 rd OF OCTOBER, 2023
WRIT PETITION No. 20541 of 2023
BETWEEN:-
1. ARUNA PATNI W/O SUMATI PRAKASH PATNI
OCCUPATION: HOUSEWIFE R/O PLOT NO. 83/84
SAI KRIPA COLONY INDORE (MADHYA PRADESH)
2. SUMATI PRAKASH PATNI S/O MANAKCHAND
PATNI OCCUPATION: SENIOR CITIZEN
BUSINESSMAN R/O PLOT NO. 83/84 SAI KRIPA
COLONY INDORE (MADHYA PRADESH)
.....PETITIONERS
(MS YASHI MAHESHWARI, LEARNED COUNSEL FOR THE PETITIONERS)
AND
1. THE STATE OF MADHYA PRADESH DISTRICT
MAGISTRATE CHAMBER NO. 109, PRASHASANIK
SANKOOL COLLECTOR MOTI TABELA INDORE
(MADHYA PRADESH)
2. AUTHORISED OFFICER CUM CHIEF MANAGER
PIRAMAL CAPITAL AND HOUSING FINANCE LTD.
ERSTWHILE DHFL INDORE 503 TO 505, 5TH
FLOOR AIREN HEIGHTS SCHEME NO. 54 PLOT NO.
13/14 VIJAY NAGAR INDORE (MADHYA PRADESH)
3. NAYAB TEHSILDAR PRASHASANIK SANKOOL
VIJAY NAGAR ZONE COLLECTORATE INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS)
This petition coming on for admission this day, Justice Sushrut Arvind
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 10/3/2023
6:12:10 PM
2
Dharmadhikari passed the following:
ORDER
Heard on the question of admission and interim relief. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners against the auction notice(Annexure P-1) dated 17.07.2023 and order(Annexure P/1A) dated 08.02.2023 passed by the respondent no.1 for handing over possession of mortgaged property to the respondent no.2.
2. Brief facts of the case are that petitioners have challenged actions of respondents before the DRT, Jabalpur by filing individual and independent S.A. No(s) 87, 88/2021,89/2021 and 90/2021 under Section 17 of the SARFAESI Act. Due to non-functioning of DRT, the said applications remain pending. In the meantime, petitioners preferred writ petition bearing W.P. No. 12667/2023 which was disposed of with the following directions :
"7. In view of sub-section (5) of Sec 17 of SARFAESI Act, but without expressing any opinion on the merits of the case, this petition is disposed of with direction to the DRT, Jabalpur to consider and decide S.A. No(s) 87, 88/2021,89/2021 and 90/2021 filed by the petitioner as expeditiously as possible, preferably within a period of sixty days from the date of receipt of certified copy of the order passed today.
8. With the aforesaid direction, the petition is disposed of."
3. Learned counsel for the petitioners submits that petitioners are subjected to grave injustice as petitioners S.A. No(s) 87, 88/2021,89/2021 and 90/2021 u/S 17 of the SARFAESI Act are still pending before the DRT despite Signature Not Verified Signed by: SEHAR HASEEN Signing time: 10/3/2023 6:12:10 PM 3 directions of this Court to consider and decide the applications filed by the petitioners within a period of sixty days. Hence, the instant petition may be allowed and the order passed by respondents be set aside.
4. Heard, learned counsel for the petitioners and perused the record.
5. This is the second round of litigation by the petitioners. In the earlier round of litigation, this Court had already directed the DRT to consider and decide the applications of petitioners within a time bound period. The ordersheets annexed with the petition clearly indicates that matter is taken up and the next date of hearing is 20.10.2023. It has further surfaced that on 24.09.2023, petitioners have filed applications for staying the auction proceedings also.
6. From the pleadings as well as the arguments , it appears that the instant vexatious petition has been filed in a hasteful manner without waiting for the learned DRT to decide the stay applications as well as the SARFAESI applications filed by petitioners. Hence, we find no reason to entertain this petition when the petitioners have already approached the Debts Recovery Tribunal, Jabalpur.
7. Recently, the Apex Court in the case of M/S South Indian Bank Ltd. & Ors. Vs. Naveen Mathew Philip & Anr. Etc Etc [2023 Livelaw (SC) 320 has deprecated the practice adopted by the High Courts whereby the writ petitions are being entertained in SARFAESI Act matters, especially against the private banks when the statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by the writ Court. The litigant cannot avoid the noncompliance of approaching the Tribunal which requires the prescription of fee and use of constitutional remedy as an alternative. The Apex Court has Signature Not Verified Signed by: SEHAR HASEEN Signing time: 10/3/2023 6:12:10 PM 4 also deprecated the practice of approaching the High Court for consideration of an offer by the borrower.
8. The Apex Court in the case of M/S South Indian Bank Ltd. (supra)further went on to hold that "we deprecate such practice of entertaining the writ petitions by the High Court in exercise of power u/S 226 of the Constitution of India without exhausting the alternative remedy available under the law."
9. In view of the above as well as in the light of the aforesaid pronouncement of the Apex Court, this Court is not inclined to entertain the writ petition.
10. Accordingly, the present petition stands dismissed.
C.c. as per rules.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 10/3/2023
6:12:10 PM